1. A defendant in a felony case must be present in open court for the imposition of sentence.

2. Felony docket fees imposed pursuant to K.S.A. 2008 Supp. 28-172a and booking fees
imposed pursuant to K.S.A. 2008 Supp. 12-16,119 are court costs, are not punitive, and
are not part of a sentence.

3. An order to pay Board of Indigents' Defense Services attorney fees is not punitive, is an
effort to recoup costs, and is not part of a sentence.

4. An order to pay an application fee to obtain services from the Board of Indigents' Defense
Services is made at the time of appointment of counsel and before sentencing, is not
punitive, is merely an imposition of costs, and is not part of a sentence.

5. K.S.A. 22-3803 allows the parties to a criminal action to be notified of the taxation of
costs through a statement served at the conclusion of the criminal case. The statement of
costs may be in the form of a journal entry, and it is not necessary for the costs to have
been announced in an earlier court proceeding.

6. A judge does not need to make findings before taxing as costs a docket fee under K.S.A.
2008 Supp. 28-172a or a booking fee under K.S.A. 2008 Supp. 12-16,119.

7. A judge must consider whether to assess fees to reimburse the costs incurred by the Board
of Indigents' Defense Services in providing counsel and other defense services and, in
doing so, must consider on the record at the time of assessment the financial resources of
the defendant and the nature of the burden that payment of the fees will impose. This
requirement will not be met if the fee is assessed only by way of a journal entry of
judgment that states only the amount of the fee.

8. A criminal defendant's ability to pay the Board of Indigents' Defense Services application
fee is to be considered by the district court at the time the defendant submits the
application for appointed counsel. No findings need to be made at sentencing for the
application fee to be a valid judgment.

Review of the judgment of the Court of Appeals in State v. Phillips, No.
96,754, an unpublished decision
filed December 28, 2007. Appeal from Sedgwick district court; ERIC R. YOST, judge. Judgment
of the Court of
Appeals affirming the district court on the issues subject to our grant of review is affirmed.
Judgment of the district
court on these issues is affirmed.

Review of the judgment of the Court of Appeals in State v. Wenzel, 39 Kan.
App. 2d 194, 177 P.3d 994
(2008). Appeal from Reno district court; TIMOTHY J. CHAMBERS, judge. Judgment of the
Court of Appeals
vacating in part and remanding with directions on the issues subject to our grant of review is
affirmed. Judgment of
the district court is vacated in part and remanded with directions. Opinion filed June 19, 2009.

Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause
on behalf of the appellants
and was on the brief for appellant Wenzel, and Carl Folsom, III, of the same office,
was on the brief for appellant
Phillips.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola
Tedesco Foulston, district
attorney, and Paul J. Morrison, attorney general, were with him on the brief for
appellee in case No. 96,754.

LUCKERT, J.: In this opinion we address the question of whether a district judge may
validly order a defendant who has been convicted of a felony to pay a docket fee, a booking fee,
Board of Indigents' Defense Services (BIDS) attorney fees, and a BIDS application fee if the
judge did not announce the order in open court during the sentencing proceeding. The defendants
in this consolidated appeal argue that imposing these fees in a journal entry of judgment without
an oral announcement violates K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a), which require
felony criminal judgments to be rendered and sentences to be imposed in open court. We reject
this argument, finding these fees are not part of the sentence because they are not imposed for
punishment but are taxed as costs in order to recoup expenses incurred by a unit of government in
processing, prosecuting, or providing services for the defense of a criminal case. Further, although
the fees are a judgment, K.S.A. 22-3803 provides that costs are to be taxed in a statement of
costs issued at the conclusion of a criminal proceeding. Consequently, costs need not be stated as
part of the judgment in open court, although the better practice is to do so.

Nevertheless, we agree with the defendants' alternative argument that due process requires
a judge to make the findings necessary to support the allocation and assessment of any cost where
the assessment or amount is not mandatory, i.e., where the legislature has granted
judges with
discretion to impose costs or to determine the amount of costs. Because findings were not made
regarding the discretionary amount of BIDS fees in Wenzel's case, the BIDS's orders in his case
are vacated and the case is remanded to the district court. In Robert G. Phillips' case, the district
judge made adequate findings, and the imposition of costs is affirmed.

Procedural Background

The question of the validity of the various orders to pay costs was raised in separate
petitions seeking this court's discretionary review of two Court of Appeals opinions: State v.
Wenzel, 39 Kan. App. 2d 194, 177 P.3d 994 (2008), and State v. Phillips, No.
96,754,
unpublished opinion filed December 28, 2007. We granted review of questions related to the
written taxation of costs, denied review on other questions presented in each appeal, and
consolidated the cases for proceedings before this court.

In Wenzel, a Court of Appeals panel held that orders to pay BIDS attorney
fees and the
BIDS application fee may be included in a journal entry of judgment even if not announced from
the bench because the assessment of such fees is mandatory under K.S.A. 22-4513 (fee for
counsel and defense services) and K.S.A. 22-4529 (application fee) and the requirement of paying
these fees was not part of Wenzel's punishment for a felony conviction of driving under the
influence. Nevertheless, because K.S.A. 21-4603d(i) and K.S.A. 22-4529 require a district judge
to consider a defendant's ability to pay when imposing BIDS attorney fees and BIDS application
fees, respectively, and the record does not reflect that the district judge did so, the Court of
Appeals vacated the fees and remanded with directions to consider Wenzel's ability to pay in
deciding if the fee should be imposed and, if so, how much Wenzel should be required to pay. 39
Kan. App. 2d at 200-02.

In State v. Phillips, No. 96,754, 2007 WL 4571093, unpublished opinion filed
December
28, 2007, a different panel of the Court of Appeals similarly found no error in assessing the
docket fee, a booking fee, and the BIDS application fee in the journal entry because "court costs
and other court-ordered fees are not punitive in nature" and they were not part of Phillips' criminal
sentence for burglary and felony theft. The Court of Appeals affirmed all of the fees imposed
against Phillips.

We granted the petitions for review in these cases to resolve this conflict in the Court of
Appeals' decisions.

Standards of Review

The issue of whether a district judge must announce an order to pay fees at the sentencing
hearing is dictated by statutory requirements and, as a result, requires our interpretation of various
statutes relating to sentencing procedures and the imposition of costs. See State v.
Scaife, 286
Kan. 614, 625, 186 P.3d 755 (2008) (BIDS application fee); State v. Robinson, 281
Kan. 538,
539, 132 P.3d 934 (2006) (BIDS attorney fee); State v. Granville, 26 Kan. 158, 160
(1881)
(noting appellant's argument that costs in criminal cases were unknown at common law and can
be imposed only if authorized by statute).

The interpretation of a statute presents a question of law over which appellate courts
exercise unlimited review. See Scaife, 286 Kan. at 625. When a court is called upon
to interpret a
statute, the intent of the legislature governs if that intent can be ascertained. The legislature is
presumed to have expressed its intent through the language it enacted. In re Adoption of
G.L.V.,
286 Kan. 1034, 1041, 190 P.3d 245 (2008). For this reason, when the language of a statute is
plain and unambiguous, courts need not resort to statutory construction. In re
K.M.H., 285 Kan.
53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008). If a statute is
subject to
more than one interpretation, however, a court attempting to discern legislative intent may employ
rules of statutory construction and look to the historical background of the enactment, the
circumstances attending its passage, the purposes to be accomplished, and the effects the statute
may have under the various constructions suggested. In re Adoption of G.L.V., 286
Kan. at 1041;
State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763,
768-69, 69 P.3d
1087 (2003).

Both defendants base their argument on the requirements of K.S.A. 22-3405, which
provides in part: "(1) The defendant in a felony case shall be present at the arraignment, at every
stage of the trial including the impaneling of the jury and the return of the verdict, and at the
imposition of sentence, except as otherwise provided by law." (Emphasis added.)
Similarly,
K.S.A. 2008 Supp. 22-3424(a) states: "The judgment shall be rendered and sentence imposed in
open court."

As the defendants argue, K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a) clearly
require that a defendant in a felony case be present in open court for the imposition of sentence. A
corollary to this rule is that "[t]he court's judgment and sentence in a criminal case do not derive
their effectiveness from the journal entry, or from any act of the clerk; they are effective when
announced." State v. Royse,252 Kan. 394, 397, 845 P.2d 44 (1993).
Stated another way: "The
journal entry 'is thus a record of the sentence imposed; but the actual sentencing occurs when the
defendant appears in open court and the judge orally states the terms of the sentence.'"
Abasolo v.
State, 284 Kan. 299, 303, 160 P.3d 471 (2007). The rationale for these rules is that
announcing
the sentence in the defendant's presence "protects the defendant's rights, as '[t]he defendant is
personally present [when the sentence is imposed], and thus knows that at that moment
he or she
has been sentenced, fined, or placed on probation, or that the imposition of sentence has been
suspended.' (Emphasis added.)" Abasolo, 284 Kan. at 308 (quoting State v.
Moses, 227 Kan. 400,
402-03, 607 P.2d 477 [1980]).

Relying on these statutes and cases, the defendants argue docket, booking, and BIDS fees
are part of the sentence and, therefore, must be announced in open court in order to be valid. This
argument, of course, assumes that these fees are part of the sentence. Generally, a "sentence" is
"the punishment imposed on a criminal wrongdoer." Black's Law Dictionary 1393 (8th ed. 2004).
Consistent with this definition, in past cases this court has examined whether fees are imposed as
part of the punishment or as a nonpunitive attempt to recoup court costs.

Court Costs

Historically, court costs have been viewed as nonpunitive. This view dates back to the
early days of statehood when this court first interpreted Kansas statutes to provide that "[a]
judgment of conviction in a criminal case in the district court carries costs against the defendant."
State v. Granville, 26 Kan. 158, Syl. ¶ 1 (1881). In Granville, the
imposition of costs was not
referred to as a "sentence" but as a "taxation of costs" that was imposed for the purpose of
shifting to the guilty defendant the monetary burdens incurred by the sheriff and county
commissioners who would otherwise have to fund the costs of a prosecution.
Granville, 26 Kan.
at 160. In other early cases, this court stated explicitly that the costs were not part of the
sentence. For example, in The State v. Schmidt, 34 Kan. 399, 404, 8 P. 867 (1885),
the court held
that a county attorney's fee, authorized by statute to be assessed against a defendant following
conviction of a prohibitory liquor law, "is not imposed as a part of the punishment, but is simply
imposed as a part of the costs of the prosecution, for services rendered by the county attorney."

After the early cases, few decisions have discussed the issue, but the occasional case has
recognized the nonpunitive nature of an order to pay fees. E.g.,
Robinson, 281 Kan. at 547
(discussing order to pay BIDS attorney fees and stating "the assessment itself is not punitive; it is
not a punishment or part of the sentence at all"); State v. Thomson, 188 Kan. 171,
176-78, 360
P.2d 871 (1961) (discussing early cases in upholding order to tax juror fees and mileage as costs);
State v. Lopez, 36 Kan. App. 2d 723, 727, 143 P.3d 695 (2006) (stating that "Kansas
courts have
held that statutes requiring a convicted defendant to pay court costs were not intended to penalize
the defendant, but to allocate the expenses incurred in prosecution"); State v. Dean,
12 Kan. App.
2d 321, Syl. ¶ 2, 743 P.2d 98, rev. denied 242 Kan. 904 (1987) (same);
State v. Waufle, 9 Kan.
App. 2d 68, 79, 673 P.2d 109 (1983) (costs do "not create any liability against defendant for the
crime committed").

Consistent with the recoupment purposes of cost statutes, these cases recognize that an
order to pay costs may be treated as a civil judgment. E.g., State v.
Shannon, 194 Kan. 258, 263,
398 P.2d 344 (1965) (rejecting defendant's complaint regarding judge "taxing the costs of the case
against him and permitting execution to issue on the judgment and a levy to be made upon the
personal property of the defendant to satisfy the judgment"). Consequently, a defendant who has
the ability to pay costs but refuses to pay them as ordered may be required to spend time in jail
similar to a civil litigant who fails to abide by a court order to pay a judgment. K.S.A. 22-3425;
cf. Ott v. Ott, 129 Kan. 541, 283 P. 918 (1930); see Bearden v. Georgia,
461 U.S. 660, 76 L. Ed.
2d 221, 103 S. Ct. 2064 (1983); State v. Higgins, 240 Kan. 756, 759, 732 P.2d 760
(1987); but
see State v. White, 41 Kan. App. 2d ___, 206 P.3d 553 (2009) (discussing whether
failure to
abide by order to pay costs imposed as condition of probation can serve as basis for revoking
probation).

The current iteration of the cost statute preserves the nonpunitive nature of costs, stating:
"If the defendant in a criminal case is convicted, the court costs shall be taxed against
the
defendant and shall be a judgment against the defendant which may be enforced as judgments for
the payment of money in civil cases." (Emphasis added.) K.S.A. 22-3801(a).
Consequently,
resolution of Phillips' and Wenzel's arguments that the fees are part of the sentence depends on
whether the fees at issue are costs.

Docket and Booking Fees

First, we focus on Phillips' complaint that the journal entry of judgment required him to
pay the docket fee and a booking fee. Wenzel does not make a similar argument.

Docket fees are provided for in K.S.A. 2008 Supp. 28-172a, which states in part:
"[W]henever the prosecuting witness or defendant is adjudged to pay the costs in a
criminal
proceeding in any county, a docket fee shall be taxed." (Emphasis added.)

Docket fees are not the only statutorily authorized costs, however. Other statutes impose
additional costs, including the booking fee that was assessed against Phillips pursuant to K.S.A.
2008 Supp. 12-16,119(a), which provides, in part, that a convicted person "shall pay a separate
court cost if the board of county commissioners or . . . the governing body of a city,
where a city
operates a detention facility, votes to adopt such a fee as a booking or processing fee." (Emphasis
added.) This statute indicates that the fee is charged for the purpose of recouping expenses by
stating: "Disbursements of these fees shall be to the general fund of the governing body
responsible for the funding of the sheriff, police department or countywide law enforcement
agency that obtains the fingerprints." K.S.A. 2008 Supp. 12-16,119(c).

Hence, both the felony docket fee imposed pursuant to K.S.A. 2008 Supp. 28-172a and
the booking fee imposed pursuant to K.S.A. 2008 Supp. 12-16,119 are court costs, are not
punitive, and are not a part of Phillips' sentence.

BIDS Attorney Fees

Next, we consider Wenzel's complaint that the journal entry of judgment required him to
pay BIDS attorney fees when the district judge had not orally announced such attorney fees at the
sentencing hearing and when defense counsel had requested a waiver of "BIDS fees." Phillips
does not present arguments pertaining to this issue.

We answered the question of whether an assessment of BIDS attorney fees was punitive in
Robinson, 281 Kan. at 547, and concluded "the assessment itself is not punitive; it is
not a
punishment or part of the sentence at all." We reached this conclusion because of the language of
K.S.A. 22-4513(a) and K.S.A. 21-4603d(i), which do not use the word "costs" but clearly
indicate that the purpose of imposing the fee is to recoup a portion of the costs incurred by the
State in providing the services of an attorney to those who have the ability to pay some or, over
time, all of the cost.

The language of K.S.A. 22-4513(a) parallels that of the general cost
statute–K.S.A. 22-3801(a)–by stating that "[i]f the defendant is convicted, all
expenditures made by the state board
of indigents' defense services to provide counsel and other defense services to such defendant . . .
shall be taxed against the defendant and shall be enforced as judgments for payment of money in
civil cases." Similarly, K.S.A. 21-4603d(i), which lists possible dispositions for crimes committed
after July 1, 1993, refers to the BIDS attorney fees as a reimbursement, stating "the court shall
order the defendant to reimburse the state general fund for all or a part of the expenditures by the
state board of indigents' defense services to provide counsel and other defense services to the
defendant."

BIDS Application Fee

Finally, we consider the complaints that both Phillips' and Wenzel's journal entries of
judgment included an order that the defendants pay the BIDS application fee of $100, as set forth
in K.S.A. 22-4529. Neither district judge announced that part of the judgment at the sentencing
hearings. The application fee is provided for in K.S.A. 22-4529, which provides in relevant part:
"Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall
pay an application fee in the amount of . . . $100 on or after July 1, 2004, to the clerk of the
district court."

The issue of whether this application fee is part of the sentence was answered in
Scaife,
286 Kan. at 625, and State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008); see
State v.
Casady, 40 Kan. App. 2d 335, 191 P.3d 1130 (2008), rev. granted January 22,
2009. The
rationale of those cases rested on the point in the criminal proceeding when the order to pay the
fee is actually imposed, which is long before sentencing, rather than the nonpunitive nature of the
fee.

In the earliest of these cases, Hawkins, we observed that the logical and
practical point to
determine whether to assess the application fee and, if so, whether to waive a part or all of the fee
is the time the defendant applies for appointed counsel. 285 Kan. at 852. At that point, a
defendant is required to file an affidavit as to his or her financial condition, and the district court
may interrogate the defendant under oath concerning the affidavit's contents, may direct the
prosecutor or other county officer to investigate the defendant's financial condition, or may
require the production of evidence on the issue of the defendant's inability to employ counsel.
K.S.A. 22-4504(a). Upon the basis of the affidavit and such other evidence as may be brought to
the district court's attention, the court is to make a determination whether the defendant is
indigent, in full or in part, or whether the defendant is financially able to employ his or her own
counsel. K.S.A. 22-4504(b). And "if any fee ordered by the court remains unpaid at sentencing,
the district court may include the unpaid fee in its sentencing order without additional findings."
285 Kan. at 853.

At the defendant's first appearance in Hawkins, the district court ordered the
defendant to
pay the application fee within 30 days. The defendant apparently did not comply with that order,
and no action was taken to enforce it before the sentencing hearing. Regardless, as emphasized by
the Hawkins court, "an order was in place which Hawkins never attempted to
modify" and the
district court "was not required to make any further inquiry." 285 Kan. at 854. Thus, the
Hawkins
court upheld the imposition of the $100 application fee.

The Hawkins rationale was reiterated in Scaife, 286 Kan. at 625,
where the defendant
complained that the journal entry included the BIDS application fee, when the district court had
not specifically ordered that fee at the sentencing hearing. Like Phillips and Wenzel in our case,
Scaife reminded this court of the rule that a criminal sentence is effective when pronounced from
the bench, rather than when the journal entry of sentencing is filed, and that "'"[a] journal entry
which imposes a sentence at variance with that pronounced from the bench is erroneous and must
be corrected to reflect the actual sentence imposed."' [Citations omitted.]" Scaife, 286
Kan. at
626.

The district court in Scaife did state that the "costs in this matter are assessed
against the
defendant," but Scaife argued this pronouncement was insufficient to be a specific order for the
BIDS application fee. After discussing Hawkins, this court reiterated that Scaife
"incurred his
obligation to pay the application fee when he applied for appointed counsel, long before
sentencing." Scaife, 286 Kan. at 626. In addition, although Scaife had requested that
the journal
entry be "corrected to delete" the district court's order for the BIDS application fee, this court
stated the journal entry "did not deviate from the court's pronouncement" with regard to that fee,
and therefore it was unnecessary to "correct" the order. Scaife, 286 Kan. at 626.

Thus, although K.S.A. 21-4603d(a)(9) provides that the fee is a disposition that "may" be
stated at sentencing "unless waived by the court," under the holding in Hawkins and
Scaife, the
journal entry merely records the fee that was assessed by the court upon the appointment of
counsel. Consequently, it is not necessary that an assessment of the BIDS application fee be
announced at the sentencing hearing to be effective. Moreover, the conclusion reached in
Robinson that the BIDS fees are imposed to recoup costs incurred in providing
services to the
partially indigent is equally applicable to the application fee.

Hence, we conclude the order to pay is made at the time of appointment of counsel and
before sentencing, is nonpunitive, is merely an imposition of costs, and is not part of the sentence.
Robinson, 281 Kan. at 547.

Judgment in Open Court

Even if the docket fee, booking fee, BIDS attorney fees, and BIDS application fee are not
part of the sentence, we must consider whether the wording of K.S.A. 2008 Supp.
22-3424(a)–which states that "[t]he judgment shall be rendered and sentence
imposed in open court"
(emphasis added)–requires us to conclude the fees must be stated in open court as part of
the
judgment.

There is ambiguity relating to whether the legislature intended to refer to "judgment" and
"sentence" as separate concepts or whether the reference is to a single concept where judgment
and sentence are the same. In Royse, 252 Kan. at 397, this court stated that
"[o]rdinarily, in a
legal sense, 'sentence' is synonymous with 'judgment' and denotes the action of a court of criminal
jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has
confessed or of which he has been convicted." This conclusion is further supported by the
allocution statute, K.S.A. 22-3422, which states:

"When the defendant appears for judgment, he must be informed by the court of the
verdict of the
jury, or the finding of the court and asked whether he has any legal cause to show why judgment
should not be rendered. If none is shown the court shall pronounce judgment against the
defendant."

This statute has been interpreted to apply to the sentencing proceeding. See, e.g.,
State v.
Valladarez, 288 Kan. ___, ___, 206 P.3d 879 (2009). Nevertheless, a different reading
could be
given in light of K.S.A. 2008 Supp. 22-3426(a) because it differentiates between the judgment
and the sentence by separating the two terms with a disjunctive and by placing them separately in
a series of items to be recorded in a journal entry, stating in part: "When judgment is rendered
or
sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be
made upon the journal of the court, reflecting, if applicable, conviction or other
judgment, the
sentence if imposed, and the commitment." (Emphasis added.)

We need not resolve this ambiguity, however, because the fees at issue are costs, and
K.S.A. 22-3803 specifically addresses the manner in which costs are to be assessed, stating in
part: "At the conclusion of each criminal case the court shall tax the costs against the party
responsible for payment and shall cause to be delivered to such responsible party a complete
statement of the costs, specifying each item of service and the fee assessed for such service." This
statute, which was not cited by any of the parties in these consolidated appeals or discussed by
either Court of Appeals panel, allows the parties to be notified of the taxation of costs through a
statement served at the end of all proceedings in the criminal case, i.e., after the
sentencing and
any other proceeding.

K.S.A. 22-3803 runs counter to Phillips' and Wenzel's argument that the costs must be
imposed in open court. When statutes are in conflict, we often state that "'[g]eneral and special
statutes should be read together and harmonized whenever possible, but to the extent a conflict
between them exists, the special statute will prevail unless it appears the legislature intended to
make the general statute controlling.' [Citation omitted.]" Pieren-Abbott v. Kansas Dept. of
Revenue,279 Kan. 83, 89, 106 P.3d 492 (2005). Here, K.S.A. 22-3803 is the
specific statute, and
it does not require the defendant's presence or the imposition of costs at sentencing. Rather, a
written statement, which could include a journal entry, may serve as the statement of costs that
are being taxed against a party in a criminal case.

Consequently, we find no merit in Phillips' and Wenzel's arguments that K.S.A. 22-3405
and K.S.A. 2008 Supp. 22-3424(a) mandate that a felony docket fee, booking fee, BIDS attorney
fee, or a BIDS application fee must be imposed in open court to be valid.

Due Process

Even so, Phillips and Wenzel argue due process entitles a criminal defendant to be present
when these various fees are imposed.

The Court of Appeals panel in Wenzel rejected this due process argument by
finding that a
hearing was not required if statutes mandated that a court enter an order. The panel substantiated
the point by providing an example of case law relating to the imposition of consecutive and
concurrent sentences, stating:

"[W]hen a district judge has the discretion to determine whether sentences will be served
concurrently or consecutively, if the judge fails to order consecutive sentences at the sentencing
hearing, that cannot be done later by the stroke of a pen on the journal entry. State v.
Jackson,
262 Kan. 119, 140, 936 P.2d 761 (1997). On the other hand, when a district judge lacks
discretion in a sentencing decision, the failure to announce some aspect of the sentence as to
which the judge had no discretion may be corrected later. Thus, in Love [v.
State, 280 Kan. 553,
560, 124 P.3d 32 (2005)], when the district judge failed to announce that the sentences were to be
served consecutively–but a statute clearly required that they must be–the judge
could enter a later
journal entry correcting the matter. 280 Kan. at 560-63." Wenzel, 39 Kan. App. 2d at
199.

Other courts have recognized the same distinction. The Florida Court of Appeals, in a case
considering the same issue as presented here, explained the rationale for the distinction noting that
"technically a defendant is on notice that all applicable mandatory costs will be imposed by virtue
of the rendition of judgment and pronouncement of sentence." Reyes v. State, 655
So. 2d 111,
116 (Fla. App. 1995), superceded by statute as stated in Cook v. State, 896 So. 2d
870, 30 (Fla.
App. 2005). Applying this rationale, we will consider whether the various costs in this case
required findings by the judge.

Docket and Booking Fees

Historically, court costs have been viewed as mandatory unless there is a clear indication
of legislative intent otherwise. See Thomson, 188 Kan. at 177; Granville,
26 Kan. 158, Syl. ¶ 1.
Consistent with this general rule, the statutes relating to docket fees and booking fees provide
those fees "shall" be assessed against the defendant upon conviction. K.S.A. 22-3801; K.S.A.
2008 Supp. 12-16,119. Furthermore, the district judge does not have discretion as to the amount
of these fees; the booking fee is set by resolution of a local unit of government and the docket fee
is set by statute. K.S.A. 2008 Supp. 12-16,119 (booking fees shall be paid "if the board of county
commissioners or . . . the governing body of a city, where a city operates a detention facility,
votes to adopt such a fee as a booking or processing fee for each complaint"; capping amount at
$45); K.S.A. 2008 Supp. 28-172a (establishing docket fees).

Consequently, a judge does not need to make findings before taxing as costs a docket fee
under K.S.A. 2008 Supp. 28-172a or a booking fee under K.S.A. 2008 Supp. 12-16,119.

BIDS Attorney Fees

In contrast, the legislature granted judges considerable discretion in determining the
amount of BIDS attorney and application fees. Although a cap is set on both fees–an
amount
determined by the severity of the crime for the attorney fees and $100 for the application
fee–the
judge is given discretion to waive part or all of the fee.

In Robinson, this court determined that the language of K.S.A. 22-4513,
which states that
BIDS attorney fees "shall be taxed against the defendant," makes consideration of the fees
mandatory. 281 Kan. at 543. However, discretion as to the amount of the fee to impose is granted
by K.S.A. 21-4603d(i), which provides in part:

"In determining the amount and method of payment of such sum, the court shall take
account of
the financial resources of the defendant and the nature of the burden that payment of such sum
will impose. A defendant who has been required to pay such sum and who is not willfully in
default in the payment thereof may at any time petition the court which sentenced the defendant
to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of
the court that payment of the amount due will impose manifest hardship on the defendant or the
defendant's immediate family, the court may waive payment of all or part of the amount due or
modify the method of payment."

Although this provision requires consideration of a defendant's financial ability, it does not
specify when that consideration must occur. In fact, no statute requires the consideration of a
defendant's financial resources to occur at sentencing. Nevertheless, in Robinson, we
concluded
the practical effect of the statutory provisions relating to BIDS attorney fees was that a
"sentencing court assessing fees to reimburse [BIDS] . . . must consider on the record at the time
of assessment the financial resources of the defendant and the nature of the burden that payment
of the fees will impose." 281 Kan. 538, Syl. ¶ 1. Robinson further clarified that
the sentencing
court must explicitly state on the record how those factors have been weighed in the court's
decision. 281 Kan. at 546; see State v. Drayton, 285 Kan. 689, 716, 175 P.3d
861(2008). The
requirements specified in Robinson will not be met if BIDS attorney fees are only
assessed via a
journal entry of judgment.

Nevertheless, because the assessment of BIDS attorney fees is not punitive and not a part
of the sentence, the failure to announce the amount of the fee at the sentencing does not mean the
fees can never be assessed against a defendant. See Robinson, 281 Kan. at 547.
Instead, a remand
is appropriate for reconsideration of the payment of BIDS attorney fees. As a result, numerous
cases have been remanded to district courts for further findings where the judges at sentencing
ordered BIDS attorney fees without consideration of the defendant's financial resources or the
burden the payment would impose. See, e.g., Statev.
Johnson, 286 Kan. 824, 190 P.3d 207
(2008); State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007).

Here, the attorney fee argument is stated only by Wenzel whose defense counsel asked at
the sentencing hearing that BIDS fees be waived. The district judge made no mention of BIDS
attorney fees at the hearing, meaning there were no findings on the record concerning Wenzel's
financial resources or the burden the payment will impose. Therefore, the Court of Appeals
concluded correctly that the fees should be vacated and the case should be remanded to the
district court in order for the district judge to make the necessary findings on the record.

BIDS Application Fee

Similar to the BIDS attorney fee statutes, the BIDS application fee statute, K.S.A.
22-4529, provides in relevant part that "[i]f it appears to the satisfaction of the court that payment
of the application fee will impose manifest hardship on the defendant, the court may waive
payment of all or part of the application fee." See also K.S.A. 21-4603d(a)(9) (disposition at
sentencing "may" include BIDS administrative fee "unless waived by the court").

Both Phillips and Wenzel argue that the judge in their respective cases should have
considered at the sentencing hearings whether payment of the $100 application fee would impose
a manifest hardship upon them. The defendants' position was rejected in Hawkins,
where this
court held a criminal defendant's ability to pay the BIDS application fee is to be considered by the
district court at the time the defendant submits the application for appointed counsel.
Hawkins,
285 Kan. at 852. No findings need to be made at sentencing for the BIDS application fee to be a
valid judgment.

The record on appeal shows that Phillips' ability to pay was considered by the district
judge at the time his counsel was appointed. This is evidenced on the BIDS form authorized by
K.A.R. 105-4-3, which includes the financial affidavit of the defendant on the top part of the form
and the court's order on the bottom. The district judge checked the box ordering payment of the
$100 application fee and did not check the box labeled "partially indigent, able to pay $______."

It is not as clear in Wenzel's case, however, whether his ability to pay was properly
considered by the district judge. The record shows that the judge checked a box on Wenzel's
application for appointed counsel when the court approved the appointment of defense counsel,
but the judge did not check any box indicating that the BIDS application fee was to be collected.
Perhaps this was meant to indicate that the fees were not to be collected due to manifest hardship,
but there was no apparent finding of a waiver to that effect on Wenzel's application.

Wenzel points out that his defense counsel requested at the sentencing hearing that
"BIDS fees" be waived. The district judge obviously did not grant this request with respect to
either the application fee or attorney fees, since both the BIDS application fee and BIDS attorney
fees were assessed in the journal entry of judgment. Yet instead of making findings and clarifying
its earlier order in Wenzel's application for appointed counsel, the district judge failed to rule on
Wenzel's request for waiver during the sentencing hearing. Because in Wenzel's case the district
judge failed to order either the payment or waiver (in part or in full) of the application fee at the
time defense counsel was appointed and it is impossible from the record to determine any district
judge made findings on the matter, the Court of Appeals correctly concluded that a remand to the
district court is necessary to obtain a finding regarding whether to waive the BIDS application fee
for manifest hardship.

It should be emphasized, however, that under normal circumstances, where the district
judge has checked the appropriate box on the application for appointed counsel indicating that full
payment of the application fee is required, partial payment is required, or payment is waived (or
has otherwise indicated its findings on the application), the district judge's failure to orally
announce the BIDS application fee at the sentencing hearing is inconsequential under the rationale
of Hawkins. Since the order for the BIDS application fee is to be made at the time the
defendant
applies for appointed counsel, a subsequent order for the same fee at the sentencing hearing
would be redundant. Accordingly, there is generally no need to require the district judge to do so.

The absence of an oral announcement of the BIDS application fee at the sentencing
hearing does not, per se, require a reversal of the fee imposed in a defendant's journal entry of
judgment.

We conclude this opinion by urging district judges to announce the imposition of costs at
the sentencing hearing. Doing so is a preferred practice. Nevertheless, the failure to do so will not
void an order to pay costs.

Those portions of the Court of Appeals decision in Phillips affirming the
district court's
imposition of a docket fee, booking fee, and BIDS application fee are affirmed. Those portions of
the district court's decision are affirmed.

Those portions of the Court of Appeals decision in Wenzel vacating the BIDS
application
fee and BIDS attorney fees and remanding to the district court with instructions to make the
appropriate findings and determinations of whether those fees should be waived in light of those
findings are affirmed. Those portions of the district court's decision are vacated and the case is
remanded to the district court with directions.